Investigating discrimination

I recently watched an excellent TED Talk by Julia Galef, that should be a “must read” for every HR professional who is tasked with the responsibility of conducting employee investigations. As explained below, applying the points made by Ms. Galef can improve your company’s response to allegations of discrimination or workplace misconduct, as well as guard against the employee investigation later being attacked as a pretext for unlawful discrimination.

Ms. Galef’s TED Talk is titled, “Why You Think You’re Right Even if You’re Wrong.” The central premise is that there are two perspectives when it comes to investigating and processing information. Ms. Galef describes these views as that of a “soldier” and the other as a “scout” mentality.

The “soldier” mindset is focused on action and seeking out information to validate the chosen course of action. In contrast, the “scout” mentality is described as follows:

The scout’s job is not to attack or defend. The scout’s job is to understand. The scout is the one going out, mapping the terrain, identifying potential obstacles … But above all, the scout wants to know what’s really there, as accurately as possible … having good judgment, making accurate predictions, making good decisions, is mostly about which mindset you’re in.

Employee Investigations – Why Perspective Matters

Sooner or later, every company will find itself in a position where it must investigate workplace misconduct or allegations of discrimination. When that time comes, there will be a litany of questions as to how the investigation should be conducted. For example:

  • Who should carry out the investigation?
  • Is it important to have an attorney lead the investigation for purposes of maintaining attorney-client privilege and attorney work product?
  • Have appropriate steps been taken to preserve information relevant to the investigation? This is especially important for emails and other digital documents.

Answers to these questions will depend largely on the circumstances of the investigation. For example, conducting an internal investigation may be appropriate when it comes to investigating a garden-variety dispute between lower-level employees. In contrast, if the allegations involve potential criminal conduct or higher-level executives involved in discrimination or harassment, it may then be prudent to carry out an investigation using independent legal counsel. But what should be a constant in any company investigation is maintaining a “scout” mindset. That is to say, an impartial investigation with the goal of understanding the factual terrain giving rise to the investigation.

There are two reasons for taking the “scout” view when conducting employee investigations. First, of course, companies should want to make disciplinary decisions based on accurate information. But equally important is to guard against having the methodology of your investigation later attacked as biased or otherwise selectively looked at particular facts to the exclusion of others to cover up unlawful discrimination.

For more information about this article or conducting workplace investigations in compliance with federal or Michigan employment laws, contact Michigan attorney Jason Shinn. Mr. Shinn routinely works with companies when it comes to investigating allegations of workplace discrimination or employee misconduct.